H-1B Fee Update
The H-1B $100,000 Fee Proclamation Expires September 20. Here Is What the 30-Day Clock Actually Means.
Proclamation 10973 — the executive order that imposed the $100,000 H-1B fee — carries a built-in 12-month expiration date: September 20, 2026. The fee is currently blocked by a federal court. The First Circuit appeal is months from a decision. And with 30 days left on the clock, the administration has to choose: extend, let it expire, or issue something new. Each option has different consequences for employers, the litigation, and the unresolved question of refunds.
The part of the proclamation almost nobody mentioned
On September 19, 2025, President Trump signed Proclamation 10973, imposing a $100,000 fee on new H-1B petitions for workers outside the United States who needed consular processing to enter. The proclamation was covered heavily — who had to pay, how the pay.gov payment worked, which categories were exempt, what it meant for overseas hiring pipelines. One provision got far less attention: the fee was temporary.
The proclamation restricted entry for a period of 12 months. That period expires September 20, 2026 — unless the administration extends it on the recommendation of the Secretaries of State, Labor, and Homeland Security. As of August 21, 2026, that expiration is 30 days away. The fee is currently blocked by a federal court order. The government's appeal is pending at the First Circuit, with full briefing and argument expected to extend into 2027. There is no merits ruling coming before September 20.
The September 20 date is not a legal deadline on the litigation — it is the self-imposed sunset on the executive action that started it all. And what the administration decides to do with it will shape everything from the future of the lawsuit to the options available to employers who paid the $100,000 and have received no guidance on refunds.
The court timeline — where the fee actually stands right now
The fee went into effect September 21, 2025. It applied to H-1B beneficiaries outside the United States who needed a new H-1B visa through consular processing. Extensions, amendments, and change of status filings inside the United States were explicitly out of scope. Employers paid through pay.gov before filing the petition with USCIS.
A coalition of state attorneys general led by California filed suit on December 12, 2025, in the U.S. District Court for the District of Massachusetts. On June 8, 2026, U.S. District Judge Leo Sorokin vacated the fee, ruling it an unlawful tax that exceeded presidential authority under the Administrative Procedure Act and the Constitution. The government appealed and asked the First Circuit to stay Judge Sorokin's order while the appeal proceeded. On June 12, the First Circuit issued a brief administrative stay, temporarily reinstating the fee. On July 24, 2026, the First Circuit denied the government's full stay motion. The fee has been blocked since then.
As of today, August 21, 2026, USCIS is not collecting the $100,000. New H-1B consular processing petitions proceed without it. The First Circuit merits briefing has not concluded. An appellate ruling on whether Judge Sorokin was correct is not imminent.
Three things that can happen on September 20
The simplest scenario: the administration does nothing, and the proclamation expires on its own terms on September 20. With no live proclamation, the government has no basis to collect or enforce the fee regardless of the court case. The First Circuit appeal may be dismissed as moot — courts cannot decide abstract legal questions without a live controversy. The fee is gone, at least until the administration takes some new action.
Second scenario: the administration extends the proclamation before September 20. The text of the proclamation authorized exactly this — the Secretaries of State, Labor, and Homeland Security can recommend extension, and the President can issue a formal order before the deadline. If the proclamation is extended, the fee remains live and subject to reinstatement if the government wins the appeal. After the July 24 First Circuit ruling, DHS issued a statement saying it 'strongly disagrees' with the order and 'still plans to collect the payment' if the stay is eventually lifted. That language is a public signal that the administration still wants this policy to survive.
Third scenario: the proclamation expires, but the administration issues a new executive action within days or weeks — one designed to address the legal weaknesses Judge Sorokin identified. The district court's core ruling was that the fee functions as a tax only Congress can impose. A new proclamation invoking different statutory authority, or framing the requirement as a regulatory mechanism rather than a revenue measure, would face a different legal challenge with different arguments. Same practical effect, different lawsuit.
What mootness means — and why it matters even if the fee dies
If the proclamation expires without extension and the administration does not replace it, the live legal controversy disappears. Courts require a live dispute — there is nothing left to contest if the fee cannot be collected and the proclamation no longer exists. A case that becomes moot is typically dismissed without a ruling on the merits.
The government could argue for an exception under the 'capable of repetition, yet evading review' doctrine — a principle that allows courts to decide technically moot cases when the issue is likely to recur and the typical litigation timeline prevents full judicial review before the recurring event happens. An administration that plans to renew or reissue the fee policy in some form might make exactly this argument to keep the First Circuit appeal alive.
The distinction matters: the current record ends with a district court vacatur that binds only the parties to that case and has limited geographic scope. A First Circuit ruling — if the court actually reaches the merits — would establish circuit-level precedent on whether the executive branch can impose a fee of this kind on immigration petitions. That precedent would constrain future administrations in a way the district court order does not. If the case dies as moot, the legal question of whether a president can impose a $100,000 immigration fee goes unanswered at the appellate level.
The refund question is still unresolved — and the clock matters
Employers who paid the $100,000 during the fee's active collection periods — September 21, 2025 through June 8, 2026 when the district court vacated it, and June 12 through July 24, 2026 when the First Circuit's brief administrative stay temporarily reinstated it — have received no guidance from USCIS on recovery. The court orders that blocked the fee said nothing about refund mechanics. Pay.gov collected the payments into Treasury accounts. USCIS has not issued a refund guidance document.
The September 20 expiration complicates this. One path to refund recovery runs through the ongoing litigation — a court order requiring the government to return fees collected under a policy that was ruled unlawful. If the case is dismissed as moot, that litigation vehicle closes without the court addressing the refund question. A separate claim under the Tucker Act in the U.S. Court of Federal Claims is a different vehicle with a six-year statute of limitations, but it requires active legal effort to pursue and is not automatic.
The practical guidance: preserve every pay.gov receipt, the petition it accompanied, the I-797 or denial notice, and any banking records associated with the payment. The analysis of whether you can recover the $100,000 depends on the specific facts of your filing and the legal theory available at the time you pursue it. Waiting to see what happens September 20 before engaging counsel costs you nothing on the Tucker Act clock, but may cost you a litigation option if the case closes.
Who was subject to the fee — and who was never in scope
The $100,000 applied only to new H-1B petitions where the beneficiary was outside the United States and needed a visa through consular processing to enter. Extensions filed inside the United States were exempt. Amendments were exempt. Change of employer filings for workers already in H-1B status were exempt. Cap-exempt H-1B petitions — those filed by universities, non-profit research organizations, and government research institutions — were also explicitly excluded.
The fee scope matters for understanding who is exposed to the refund question. A company that brought ten workers from abroad on new H-1B visas during the collection window paid $1 million in fees that are now blocked by a court order and potentially refundable. A company that handled only extensions and amendments during the same period paid nothing under the proclamation and has no refund question to resolve.
The FY2027 H-1B cap closed in July 2026. No new cap-subject H-1B petitions are being accepted until the FY2028 registration period opens. Cap-exempt petitions continue throughout the year. For companies with ongoing cap-exempt H-1B activity or October 2026 entry plans for consular processing cases, the September 20 deadline is directly relevant to their near-term filing strategy.
What to watch for between now and September 20
The date to monitor is September 20, 2026. If no administration action appears before that date — no executive order, no new proclamation, no Federal Register notice — the 12-month restriction ends on its own terms. That would make the fee structurally dead regardless of the First Circuit's eventual ruling.
What extension would look like: a White House statement, a signed presidential proclamation, or a DHS announcement in the Federal Register. The administration would almost certainly give public notice before extending, because employers need to know whether the $100,000 obligation resumes. An extension without public notice would recreate exactly the confusion the back-and-forth court orders already produced.
For employers managing October or November 2026 H-1B consular processing cases: the honest planning posture right now is to proceed without the fee — which is not being collected — while building a contingency scenario for what happens if the proclamation is extended or a new one is issued. The fee is off today. Whether it is off on September 21 depends on a decision only the administration can make. This article is informational only and does not constitute legal advice. The status of Proclamation 10973 is subject to change through executive action or court orders that may arrive quickly. Consult a licensed immigration attorney who is monitoring the case before making filing or refund decisions.